In the Matter of 



i 


Before the Committee on Privileges 
and Elections of the Senate of the 
United States. 


Brief and Argument 

in Opposition to his Claim to a Seat 


y 

GEORGE WHARTON PEPPER 
HAMPTON L. CARSON 

i 

GEORGE F. EDMUNDS 


of Counsel 






I 

































































In the Matter of 


Matthew Stanley Quay. 


Before the Committee on Privileges and Elections 
of the Senate of the United States. 


BRIEF AND ARGUMENT 
In Opposition to his Claim to a Seat. 


STATEMENT OF FACTS 

Prior to March 3, 1899, M. S. Quay was senior United States 
Senator from Pennsylvania. On Tuesday, January 17, 1899, the 
Legislature of Pennsylvania began balloting for the purpose of 
selecting some one to fill the vacancy, which, in default of an election, 
would thereafter happen upon March 4th. Daily ballots were taken, 
in obedience to the provisions of the Act of Congress of July 25, 
1866, and of the Pennsylvania Statute of January 11, 1867, 
but at no time during the session of the Legislature did Mr. 
Quay receive a majority of the votes cast. On March 3, 1899, the 
Legislature being still in session, Mr. Quay’s term expired, and on 
March 4th a vacancy happened. The Legislature remained in session 
and took daily ballots until April 19, 1899, and on that day adjourned 
sine die without effecting an election. The total membership of the 
Legislature was 253. The last vote preceding adjournment was for 
Mr. Quay 93, and for his opponents 154. Immediately after the 
adjournment, to wit, on April 21, 1899, His Excellency, Wm. A. 
Stone, Governor of Pennsylvania, signed and delivered to Mr. Quay 
what purported to be a temporary appointment to represent the 





2 


State of Pennsylvania in the Senate of the United States until the 
next meeting of the Legislature. Up to the present time the Governor 
of Pennsylvania has not summoned the Legislature of the State for 
the purpose of filling the vacancy which happened as above set forth 
on March 4, 1899, although expressly required so to do by Section 4, 
Article II; of the Constitution of Pennsylvania. 

The question presented to the Senate of the United States, 
which is the judge of the qualifications of its own members, is there¬ 
fore the all-important question, whether the Senate will, by seating 
Mr. Quay, recognize the right of a Governor to make a temporary 
appointment in the case of a vacancy happening by the expiration of 
a previous term ; which term ended while an organized Legislature, 
competent to elect, was sitting and continued to sit, with ample 
opportunity to fill the vacancy, for a long time thereafter. 

In view of the language and spirit of the Constitution of the 
United States, and in view of the decisions of the Senate 
rendered during the period of a century, adverse to the right of 
a Governor to appoint after a Legislature has had the opportunity to 
elect, it is obvious that the proposal that the Senate shall affirm the 
Governor’s right to appoint must, if seriously insisted on, receive the 
most deliberate consideration on the part of those who are entrusted 

i 

by the people of the United States with the responsibility of disposing 
of it. It is certain that the Honorable Senate of the United States 
will give to the question the consideration it demands. 

It is submitted that in approaching the consideration of the 
question, it is proper: 

First .—To examine the provisions of the Constitution of the 
United States applicable to the case, endeavoring to ascertain their 
true meaning in the light of the history of their composition and of 
just principles of interpretation. 

Second .—It is proper to examine the precedents of the action 
taken by the Senate in similar cases which have come before it for 
decision. 


3 


Third .—As illuminating the above considerations, and as inci¬ 
dental to them, it is proper to consider the circumstances under which 
the Governor of Pennsylvania acted with reference to the provisions 
of the Constitution of the Commonwealth not inconsistent with the 
provisions of the Constitution of the United States. 

These points may now be examined in order. 


I. 

• 

The provisions of the Constitution of the United States 
relating to the Election of Senators—Their History and 
Interpretation. 

Article I, Section 3, of the Constitution of the United States, is 
in part as follows: 

“ Section 3. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature thereof, for 
six years; and each Senator shall have one vote. 

“ Immediately after they shall be assembled in consequence of 
the first election they shall be divided as equally as may be into three 
classes. The seats of the Senators of the first class shall be vacated 
at the expiration of the second year, of the second class at the expira¬ 
tion of the fourth year, and of the third class at the expiration of the 
sixth year, so that one third may be chosen every second year ; and 
if vacancies happen by resignation, or otherwise, during the recess of 
the Legislature of any State, the Executive thereof may make tern, 
porary appointments until the next meeting of the Legislature, which 
shall then fill such vacancies.” 

When this language is analyzed, it appears in the first place that 
Senators are to be chosen by the Legislatures of the several States. 
It appears in the second place that there is equality of suffrage 
between the States represented in the Senate. It appears in the third 
place, that if vacancies happen in the office of Senator, by resignation 



4 


or otherwise, the Legislature alone can “ fill such vacancies .” It 
appears in the fourth place that during the interval between the hap¬ 
pening of a vacancy in recess and the next meeting of the Legislature 
the executive of a State has a right, but is not bound, to make tem¬ 
porary appointments until the next meeting of the Legislature, 
“which shall then fill such vacancies.” 

i. Historical Summary. 

Turning to the record of the proceedings of the Federal Conven¬ 
tion which framed the Constitution, it will be found easy to trace the 
gradual development of so much of the third section of Article 1 of 
the Constitution as is cited above. 

The Convention having assembled on May 25, 1*787, business 
began on the 29th with the submission by Mr. Randolph of fifteen 
propositions, which included a provision that members of the first 
branch of the National Legislature should be elected by the "people, 
and that members of the second branch should be elected by those of 
the first out of a proper number of persons nominated by the individual 
Legislatures. There was also submitted a draft of a Federal Govern¬ 
ment (sometimes erroneously ascribed to Mr. Pinckney) providing 
that members of the first branch should be chosen by the people 
“ and vacancies therein shall be supplied by the Executive authority of 
the State.” The Senators (under this plan) were to be chosen by the 
first branch. There was to be no nomination by the Legislatures, 
but a choice of Senators was to be made from among the citizens of 
the States, and all vacancies arising from death or resignation were 
to be filled for the remaining portion of the term by the House. It 
thus appears that Mr. Randolph made no provision for the filling of 
a vacancy in the Senate and the so-called Pinckney plan, while 
contemplating that a State Executive should rill a vacancy in the 
House, made no provision for the exercise of such a right in the case 
of a vacancy in the Senate, it being understood that such a 
vacancy should be filled by the same authority with which rested the 
original responsibility of choice. 


5 


Both the Randolph and Pinckney plans provided for inequality 
of suffrage in both branches. 

On June 7th, there was a unanimous vote in favor of Mr. Dick¬ 
inson’s motion, “that the members of the second branch ought to be 
chosen by the individual Legislatures.” 

On June 15th, Mr. Patterson submitted nine propositions pro¬ 
viding that members of the second branch be chosen by the Legisla¬ 
tures, but making no mention of vacancies. He also contemplated 
inequality of suffrage in both branches. 

On June 18th, Mr. Hamilton submitted, but did not move the 
adoption of, a plan involving the popular election of Senators, with 
a provision for an additional election by the people in case of a vacancy. 

On June 19th, the Committee of the Whole was ordered, on 
motion, to rise and report nineteen resolutions founded on Mr. Ran¬ 
dolph’s proposition which included a provision that Senators should 
be chosen by the individual Legislatures. Unequal suffrage was con¬ 
templated, but nothing was said about vacancies in either house. 

The insistence of the large States on unequal suffrage in both 
branches now threatened to cause a final disagreement. A compro¬ 
mise, however, was negotiated between Mr. Ellsworth and Mr. Sher¬ 
man on behalf of the smaller States (with the assistance of Mr. Madi¬ 
son in the interest of harmony) and a committee was appointed of 
one from each State (Mr. Ellsworth representing Connecticut and 
Mr. Rutledge the Carolinas) to consider the ratio of suffrage in the 
Senate. 

On July 5th, this committee reported in favor of equal suffrage 
in the Senate 

On July 26th, on the basis of the compromise above mentioned, 
the resolutions as agreed to, together with Mr. Pinckney’s and Mr. 
Patterson’s resolutions, were committed to a Committee of Detail 
(consisting of Messrs. Ellsworth, Rutledge, Wilson, Randolph and 
Gorham) which made its report on August 6th. 

On August 9th, that portion of the report of the Committee of 
Detail which deals with the election of Senators, came up for discus- 


6 


sion. It will be noted that Mr. Ellsworth had successfully cham¬ 
pioned the rights of the smaller States and had succeeded in bring¬ 
ing about a compromise by which they gained equal representation. 
He was, of course, extremely anxious that the smaller States should 
be secure in their right to be represented at their own desire in the 
Senate under all circumstances, and therefore he was desirous of 
having the right to make temporary appointments in case of vacancies 
secured to the State executive. Accordingly when on August 9th 
Mr. Wilson made a general objection to the appointing power vested 
in a State executive, Mr. Ellsworth at once replied, “ It is only 
said that the executive may supply vacancies. When the legislative 
meeting happens to be near the power will not be exerted.’’ 

It will be noted that the provision as brought in by the Com¬ 
mittee of Detail w r as in the following words : “ The Senate of the 
United States shall be chosen by the Legislatures of the several 
States. Each Legislature shall choose two members. Vacancies 
may be supplied by the executive until the next meeting of the Leg¬ 
islature. Each member shall have one vote.” 

In view of the point made by Mr. Ellsworth, it is clear at the 
outset that the word may was used advisedly, and is not equivalent 
to shall. This is all the more significant when it is noted that 
immediately before the paragraph thus dealing with the Senate, 
the Committee set forth the paragraph dealing with the House, 
which contained the provision that in case of vacancy, the Governor 
shall issue writs of election. 

On September 12th the Committee on Style, Revision and 
Arrangement reported, and the third section of Article I read in 
their report just as it does in the Constitution, excepting that it did 
not contain the words “ which shall then fill such vacancies.” 

On September 14th by an amendment whose author does not 
appear the last mentioned words were added. It is, therefore, a fact 
that the last touch added by the framers to make their meaning in the 
premises abundantly clear, took the shape of an emphatic declaration 
that it was the duty of the Legislature to fill vacancies, just as it was 


7 


the duty of the Legislature to make the election in the first instance 
The right of the Executive had barely survived the criticism directed 
against its exercise, and was hedged before and behind with pro¬ 
visions which showed that it was regarded as a power to be exercised 
only where the Legislature had had no opportunity to elect—and 
even then to be used only at the option of the Executive. 

2. Interpretation of the Language of the Constitutional 

Provision. 

A . The Theory of the Composition of the Senate. 

Turning again to the language of the Constitution, attention is 
called to the fact that the fundamental provision in regard to the 
composition of the Senate is contained in the opening sentence of the 
section. The provision is that the Senate 11 shall be composed of 
two Senators from each State, chosen by the Legislature thereof .’ 1 
It has accordingly been well said that “ the Senate of the United 
States is composed of organized constituencies, the State Legisla¬ 
tures ; to them belongs the power primarily of electing their Senators, 
W’hen they are in session, at the happening of the vacancy, and at 
their first meeting when it happens in recess, and on them devolves 
the exclusive jurisdiction of filling such vacancies. Their right and 
authority to fill or supply vacancies which have been temporarily 
filled by executive appointment are as absolute and exclusive as was 
their power in an original election. When their power is brought 
into existence it must supersede all others, with this qualification, 
and that according to precedent, that they have a session to make 
the choice.” (Minority report of the Committee on the Judiciary 
in the case of Samuel S. Phelps. The view of the minority pre¬ 
vailed with the Senate.) 

In harmony with the view thus expressed, the section then deals 
with the division of Senators into classes. The last provision in 
the section is that which deals with the happening of vacancies, and 
it is only in order to make provision for an emergency which happens 


8 


during a recess of the Legislature that a subordinate right of appoint¬ 
ment is vested in the Executive authority. It follows that, if in a 
given case there is a doubt whether the Governor should exercise 
the power in question, the doubt should be resolved against his right; 
for (to quote again from the same Report), “a Senator, under an 
Executive appointment, may or may not represent the political views 
of his State 5 he may be the mere personal favorite of the Governor. 
The Senate, as far as practicable, should be made to represent its 
constitutional constituency, and in this respect should preserve the 
Republican feature of our Union .’ 1 

B . When a Yacancy “Happens” within the Meaning of 
the Constitutional Provision. 

The language of the Constitution is, “ if vacancies happen by 
resignation, or otherwise, during the recess of the Legislature of any 
State, the Executive thereof may make temporary appointments,” etc. 

Assuming a case in which the office of United States Senator 
becomes vacant while the Legislature of a State is in session, and the 
office remains unfilled during the remainder of the session and during 
the recess which follows it, the question is, Does such a vacancy 
happen during the session or during the recess, or both ? 

If this question were put to a layman with no other object in 
view than to obtain an intelligent and unbiassed opinion, it is hard 
to resist the conclusion that he would answer by saying that the 
vacancy happened during the session of the Legislature, and then 
only. If we resort to an exact analysis of the thought expressed by 
the word “ vacancy,” we find that the word has at least two mean¬ 
ings, dependent upon the verb which may be used in connection with 
it. If vacancy ” is used with a verb which denotes an occurrence 
in a moment of time, the mind is invited to a consideration of the 
fact of becoming vacant. If “ vacancy ” is used in connection with a 
verb which denotes the continuance of a condition, as, for example, 
the verb “ exists,” the thought which “vacancy” suggests to 
the mind is the duration of the state of being vacant. Now, the 


9 


framers of the Constitution, when they made use of the word 
“ happen,” selected the verb which of all others m the English 
language most strikingly indicates the occurrence of an event 
(usually an unexpected event), befalling in a moment of time. A 
“ vacancy ” happens when (and only when) the condition of vacancy 
begins. A 11 vacancy ” exists as long as the state of being vacant 
endures. Note the interesting analogy suggested by the neighboring 
words in the section under examination, “ during the recess of the 
Legislature.” The word “recess” may have the double meaning 
which has been attributed to the word vacancy. A recess happens 
the moment the Legislature adjourns, and it happens only then. A 
recess endures from the time of adjournment until its next meeting. 
The framers of the Constitution, with that delicate sense of the fitness 
of words which characterizes the entire instrument, provided for the 
event which would befall in case a vacancy were to happen within 
the limits of the duration of the recess of the legislative body. We 
are, of course, aware that nothing amounting to demonstration is pos¬ 
sible when a difference of opinion has arisen about the interpretation 
of a constitutional or statutory provision ; but we submit with con¬ 
fidence that the considerations just advanced approach a demonstra¬ 
tion that the framers of the Constitution meant to provide only for 
that which should occur when the Legislature was not sitting. 

C. The Argument Based upon the Analogy of Executive 
Appointments. 

In Section 3 of Article II of the Constitution of the United 
States, the following provision occurs: 

“ The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting commis¬ 
sions which shall expire at the end of their next session.” 

In opposition to the interpretation urged above, it is often said 
that the right of a State Executive to fill a Senatorial vacancy which 
has occurred during a legislative session should be assimilated to the 


10 


admitted right of the President to fill up during the recess of the 
Senate vacancies that might have happened while the Senate was 
in session. 

In answer to this contention, three points are confidently sub¬ 
mitted. 

(a) It is not admitted that any different interpretation should be 
placed upon the provision governing presidential appointments from 
that which has been contended for in the case of the State Executive. 
In point of fact, the history of the interpretation which has for some 
years been placed upon the presidential power is not a particularly 
creditable one and is not such as forms the basis of any strong argu¬ 
ment from analogy. Originally it was never supposed that the Presi¬ 
dent had a right to fill a vacancy which occurred when the Senate was 
in session. Prior to 1823, Mr. Sergeant, afterwards a judge of the 
Supreme Court of Pennsylvania, in his work upon the Constitution, con¬ 
strued the language in question as conferring no right upon the Presi¬ 
dent except where the vacancy occurred in recess. In 1823, the then 
Attorney General, Mr. Wirt, while conceding that this interpretation 
was most accordant with the literal sense and natural import of the 
words of the Constitution, gave it as his opinion that reasons of pub¬ 
lic expediency required the President to fill up vacancies left unfilled 
at the adjournment of the Senate to prevent the inconveniences which 
would result if there should be no one who could discharge the duties 
of the office in question. In the edition of Mr. Sergeant’s work pub¬ 
lished after Mr. Wirt’s opinion, the author does not change his view 
in consequence of it. Even after so distinguished an Attorney Gen¬ 
eral as Mr. Taney had concurred in Mr. Wirt’s opinion, Judge Story, 
in his commentaries adhered to the text of Mr. Sergeant. The same 
statement is true of Chancellor Kent who made a note of Mr. Wirt’s 
opinion, but did not modify his text in accordance with it. In 1841, 
Mr. Attorney General Legare gave a qualified opinion to the same 
effect as Mr. Wirt. In 1845, Mr. Attorney General Mason gave a 


11 


contrary opinion in the case of the appointment of judges for Iowa 
and Florida, but afterwards in 1846, in the matter of the appoint¬ 
ment of a deputy postmaster at Buffalo, he suffered himself to be 
guided by the previous opinions and, adopting the somewhat 
apologetic language of Mr. Wirt, said that in acquiescing in their 
conclusions he was “ doing no violence to the language of the 
Constitution.’’ Mr. Cushing considered the matter incidentally 
in 1855, and during the ensuing seven years other Attorneys- 
General concurred in the views of their predecessors. In 
1862 Mr. Attorney-General Bates, upon the question of the power of 
the President to fill a vacancy in the bench of the Supreme Court, 
which had happened during a session of the Senate, used the follow¬ 
ing significant language : “ If the question were new, and now for 
the first time to be considered, I might have serious doubts of your 
constitutional power to fill up the vacancy by temporary appoint¬ 
ment in the recess of the Senate.’’ He, however, deferred to the 
practice and followed the opinions of some of his predecessors. In 
1868, in a most elaborate opinion reported in Yolume 8 of the Inter¬ 
nal Revenue Record at pages 137-145, Judge Cadwalader, of the 
District Court of the United States, reviewed all the authorities, 
examined the opinions of the Attorneys-General and rendered the 
only judicial decision upon the subject which we have been able to 
find. He thus sums up the state of the authorities : “ The existence of 
the power in question has not been legislatively recognized, has been 
denied by the Senate, has been practically asserted by Presidents only, 
and has not been exercised without constantly recurring suggestions 
by them of doubts of its existence under the Constitution ; opinions of 
Attorneys-General have been its only support; and in these opinions 
other j urists of eminence have not concurred. ” As illustrating the an¬ 
tagonism which this usurpation on the part of some Presidents has 
excited, note may be made of the Act of Congress of February 9, 1863 
(Revised Stats., 1768), providing that no money should be paid 
from the United States Treasury as salary to any one appointed to 
fill a vacancy which had occurred while the Senate was in session. 


12 


Since that time presidential appointments have been made, but the 
practice has always excited criticism and opposition. At no time was 
this opposition more pronounced than when President Cleveland, 
after his appointees to various offices had been rejected by the Senate, 
insisted upon reappointing those who were personae non gratae to the 
Senate as soon as that body had risen ; and the same thing has oc¬ 
curred in the administrations of other Presidents. An extension of 
this abuse of presidential power may, in the future, lead to a seri¬ 
ous curtailment of the rights of the Senate as vested in that body 
by the careful provisions of the Constitution. 

( b ) Even if it be conceded that the presidential power of appoint¬ 
ment, under the circumstances in question, is the result of an ad¬ 
ministrative necessity for such an interpretation of the constitutional 
provision, it will be noted that the circumstances of the case are 
radically different from those which exist in the case of a senato¬ 
rial vacancy. The presidential right of appointment applies to offices 
in many instances occupied by single individuals, so that if a vacancy 
continues the duties of the office cannot be discharged at all. In the 
case, for example, of the collector of a large port, it is easy to ima¬ 
gine the great public inconvenience which would result if the failure 
of the Senate to confirm an appointment were to involve a vacancy 
of the office until the next session of Congress. In the case of the 
Senate (however desirable it may be that its membership should 
be kept full), it is extremely unlikely that legislative inaction will 
seriously hamper the prosecution of national business: for the States 
are now many and the Senators are twice as many ; and it is certain 
that the several Commonwealths will not long permit their Senato¬ 
rial representation to fall below its normal strength. 

(c) As a further distinction between the case of presidential 
appointments and the case under discussion, it will be observed that 
the appointment of administrative officers is under the Constitution 
primarily an executive function. The function of the Senate is that 
of an advisory and consenting body. In the case of the election of 


18 


the United States Senators the responsibility is cast by the Constitu¬ 
tion upon the Legislatures of the States, and the whole theory of the 
composition of the Senate demands that the people of the States 
shall act through their legislative representatives. To assimilate the 
subordinate right of the State Executive to the primary right of the 
President of the United States is to invert the analogy and to reason 
backwards. 

D. The Argument that the Senate should be Kept Full. 

It is sometimes suggested that the right of a Governor to appoint 
whenever he finds a vacancy existing, and a Legislature not in ses¬ 
sion, may be vindicated upon the principle that the Senate must 
always be kept full. The argument is that the importance of sena¬ 
torial business is such that no vacancy should be allowed to continue ; 
and that the State Executive, in making a temporary appointment, is 
really acting primarily in the interest of the Senate, and only incident¬ 
ally in the interest of his own State. It is important to note (in the 
light of the historical data examined above) that the right of the 
Governor was not conferred upon him out of consideration for the 
convenience of the Senate, but in order to give to the smaller States 
an additional assurance that they might always be represented in the 
Senate if they wish to be. It is also important to note that the lan¬ 
guage of the Constitution is precisely adapted to the expression of 
this thought. The provision is that the Governor “ may ” make tem¬ 
porary appointments. If the intention of the framers had been to 
insure the constant presence in the Senate of a full quota of Senators, 
it would have been provided that the Governor shall appoint when¬ 
ever and however a vacancy exists. To say that the appointing 
power is to be ascribed to considerations of national policy is to ad¬ 
mit that the policy in question may be frustrated by the mere de¬ 
cision of a Governor not to appoint. This is to impute to the framers 
a looseness of thought which is altogether out of harmony with what 
we know of their deliberations and in striking contrast with all the 
other provisions of the Constitution. 


u 


It may be said, however, that for the good of the State as well 
as for the good of the Senate, the Senatorial representation from a 
State must be kept full. The answer to this contention is conclusive. 
It is of greater importance to the State that those who sit as Senators 
shall really be the choice of the legislators elected by the people 
than that the Senatorial seats shall be kept full at all hazards and 
without regard to the source from which the occupants derive their 
title. It is better for a State to have for a while no Senatorial rep¬ 
resentative, or only one, than to be subjected to the dangers that will 
surely ensue if the appointing power of the Governor is extended be¬ 
yond the very letter of the limitation. If, in accordance with the pres¬ 
ent settled law of the Senate, a Governor has no rights when the 
Legislature has had an opportunity to elect, he has no motive in 
working to prevent an election by planning to bring about a deadlock. 
Once concede to the Governor the right to appoint when the Legisla¬ 
ture has had its opportunity but has not acted, and there is straight¬ 
way created a powerful incentive to the formation of a “ Governor’s 
party ” to wield the balance of power and throw the choice of Senator 
into the hands of the Executive. If such a condition of things is 
contemplated even for a moment, it will be seen to be altogether at 
variance with the constitutional theory of the composition of the 
Senate, and absolutely abhorrent to the expressed opinions of the 
Fathers. They conceived of the Governor as the holder of a sub¬ 
stitutionary right, to be exercised only in an emergency. They 
would have shrunk from the suggestion that their language might be 
so construed as to enable him to become a political schemer, plotting 
to prevent the Legislature from exercising its constitutional functions. 

3. The Senate, in Passing Upon the Qualification of its 
Own Members, Exercises a Judicial Function. 

Section 5, Article I, of the Constitution of the United States 
provides: 

“ Each House shall be the judge of the elections, returns and 
qualifications of its own members.” 


15 


Deriving its own existence from and maintaining that existence 
under the provisions of the Constitution, the Senate is not at liberty to 
pass upon the qualifications of its membership upon general principles of 
good fellowship. It is not a social club, where members are to be chosen 
because of their companionable qualities, their virtues or their 
amiabilities. “ The right of a Senator to a seat,” said Senator 
Spooner, in the Corbett case, “depends entirely upon a question of 
constitutional law, and I think all Senators who do me the honor to 
listen will agree with me that into the decision of that question there 
may not rightfully enter any complications of public policy or of 
personality.” (Congressional Report, February 24, 1898, page 2119.) 

While it is true that the Senate is not in every technical sense 
of the term a judicial body, yet it is wholly and solely that under the 
provisions above quoted and is certainly bound by the language of the 
Constitution as expounded by itself in similar cases, or in cases the 
facts of which bear so close a resemblance to the case under consid¬ 
eration as to furnish a fair basis for reasoning from analogy. Prece¬ 
dents are not to be lightly overturned. Action must be taken solely on 
principle. No case of hardship exists to-day that is any greater in its 
consequences or more distressing in its features than those that have 
been disposed of by the Senate in time past. No Bpecial facts can 
be alleged here which can exempt this case from the operation of the 
principles of construction which have been herein contended for. 
There is no reason that can be suggested why the present case should 
not be decided in harmony with the precedents represented by the 
decisions of the Senate in cases that have already come before it. To 
a consideration of these precedents attention is next invited. 


16 


II. 

Precedents of the Action Taken by the Senate in Similar 
Cases which have come Before it for Decision. 

Much has been said and written in the discussion of the 
question whether the doctrine of stare decisis is applicable to sena¬ 
torial deliberations. Perhaps no more satisfactory answer can be 
given to the question than to point to the records of the Senate 
Election Cases which have come up for decision during the last 
hundred years. Whatever the theory may be, the fact is that the 
Senate has shown the most commendable zeal in trying to decide 
cases upon principle and in working out rules of action as distin¬ 
guished from arriving at decisions by a consideration of the 
personal or political element in each particular case. 

An examination of the precedents discloses the fact that the 
questions presented to the Senate for decision group themselves 
naturally into four classes: ( 1 ) questions relating to the cause of 
vacancy; ( 2 ) questions relating to the time of the occurrence of the 
vacancy; (3) questions relating to the time of the Governor’s 
appointment; and ( 4 ) questions relating to the limitation of the 
term of a Governor’s appointee. 

1 . Cases in ivhich the question relates to the cause of vacaney 

Vacancies may occur, generally speaking, in three ways: by 
death, resignation, or by the expiration of a prior term. In the case 
of vacancies caused by the expiration of a prior term, it may chance 
that the happening of a vacancy can be foreseen (which is the usual 
case), or that it cannot be foreseen. Again (as for example, where 
an old State Constitution is succeeded by a new one), a state of 
affairs may exist in which the vacancy, although foreseen, cannot be 
provided for, because no Constitutional Legislature exists competent 
to fill it. No difficulty is presented where the vacancy is caused by 
a casualty. It has always been plain that in such a case the 
Governor’s right to appoint exists, provided the casualty happens 


It 


during a recess of the Legislature. Where the vacancy is caused by 
the expiration of a term, and the happening of the vacancy in recess 
could be foreseen, it was held in the following cases that the Gover¬ 
nor’s right to appoint existed: Uriah Tracy, 1801 (Taft, page 3); 
Samuel Smith, 1809 (Taft, page 4). In the following cases, it washeld 
that the Governor’s appointee was not entitled to his seat; James 
Lanman, 1825 (Taft, page 5) ; Lee Mantle, 1893. In the case of 
John B. Allen and Asahel C. Beckwith the occurrence of the vacancy 
could be foreseen; but the cases were not pressed to a vote, as the 
Senate decided against the right of Mantle to take his seat. A 
similar decision was reached in the case of Henry W. Corbett, 1898. 

It has happened only once that the occurrence of a vacancy by 
the expiration of the term could not be foreseen by the Legislature. 
This was in the case of Ambrose H. Sevier, 1836 (Taft, 7), who 
drew a short term by lot, the fact not being known to the Legislature, 
and he was held entitled to sit upon the Governor’s appointment. 

It has happened twice that a change in the State Constitution 
has so operated as to deprive the Legislature which last sat before the 
occurrence of the vacancy from exercising the right to provide for the 
filling it. In these cases (the vacancy occurring during a recess of 
the Legislature), it was held that the Governor’s appointees were 
entitled to sit. Case of Charles H. Bell, 1879 (Taft, 26), and Henry 
W. Blair, 1885 (Taft, 36). 

Summing up the cases in which the vacancy has been caused by 
the expiration during a recess of the Legislature of a prior term 
where the occurrence of the vacancy could be foreseen, it appears 
that in the first two cases the right of the Governor to appoint was 
upheld, and in the last five cases (including for this purpose the Allen 
and Beckwith cases) the right was denied. Where the vacancy 
could not have been foreseen, or (if foreseen) could not have been 
provided for, the Governor’s appointee was held to be entitled to 
his seat. 

Quite apart, therefore, from other considerations, it appears that 
in order to seat Mr. Quay, it would be necessary for the Senate on 


18 


this point to reverse a rule of action which has been recognized for 
seventy-five years. 

2. Cases in which the question relates to the time of occurrence 
of vacancy. 

Whatever may be the true interpretation of the phrase “happen 
during the recess of the Legislature,” it is a fact that the Senate has 
never once been called upon to vote upon the right of a Governor’s 
appointee where the vacancy occurred during a session of the Legisla¬ 
ture. In only one case has it been thought worth while to bring 
such a question before the Senate. This was in the case of John B. 
Allen, in 1893, when the matter was dropped without being pressed 
to a vote. In every other case in w T hich there has been a contest, 
from 1194 to 1898, the vacancy sought to be filled by the Governor’s 
appointment occurred during the recess of the Legislature. It has 
often happened that Senatorial seats remained unfilled at the begin¬ 
ning of terms, by reason of non-election by the Legislature. Among 
the cases is that of a vacancy in the office of Senator from Pennsyl¬ 
vania from March 4, 1855, to January 18, 1856. In none of these 
cases did the Governor presume to exercise the right which he has 
claimed in the case of Mr. Quay. If there were nothing more in the 
case than this, there would be a sufficient ground upon which to ask 
the Senate to pause before yielding its assent to a claim of right upon 
the part of a State Executive, the exercise of which may be fraught 
with danger to the several States, and even to the Senate itself. 

3. Cases in which the question relates to the time of the 
Governor's appointment. 

The Governor may assume to exercise the right of appointment 
either before the vacancy has occurred, or after it has occurred. In 
either case, it may happen that there has been an opportunity for 
legislative action between the occurrence of the vacancy and the 
Governor’s appointment, or it may happen that there has been no 
such opportunity. 


19 


In the following four cases the Governor has claimed the right 
to appoint in anticipation of a vacancy, no opportunity occurring for 
legislative action : Uriah Tracy, 1801, supra ; James Lanman, 1825, 
supra; Ambrose II. Sevier, 1836, supra; Horace Chilton, 1891 
(Taft, 48). The Governor’s appointee was permitted to take his seat 
in every case except the Lanman case. The decision in the Lanman 
case is sometimes said to have been based upon the denial of the right 
of a Governor to make an appointment in anticipation of a vacancy. 
It is more probable (as suggested above) that the decision was based 
upon a denial of his right to fill a vacancy which could be foreseen. 

In the following nine cases the Governor claimed a right ot 
appointment after the occurrence of a vacancy when there had been 
no opportunity for legislative action in the interval: Samuel Smith, 
1809, supra; Robert C. Winthrop, 1851 (Taft, 10); Archibald 
Dixon, 52 (Taft, 13) ; Samuel S. Phelps, 53 (Taft, 16) ; Jared W. 
Williams, 1853 (Taft, 23) ; Charles H. Bell, 1879, supra; Henry W. 
Blair, 1885, supra ; Lee Mantle, 1893, supra; Henry W. Corbett, 
1898, supra. In all these cases, as far as the mere time of appoint¬ 
ment is concerned, the act of the Governor was regarded as a 
legitimate exercise of the executive power of appointment. In the 
Mantle and Corbett cases, however, the appointee was held not to 
be entitled to his seat on the entirely independent ground that the 
vacancy was foreseen by the Legislature and could have been pro¬ 
vided for by anticipation. 

In only two cases does it appear that an executive appointment 
was made after the vacancy had occurred when there had been an 
intervening opportunity for legislative action. One of these was the 
Allen case already referred to as not having been pressed to a vote. 
The other case was the first contested case that ever came before the 
Senate, that of Kensey Johns, 1794 (Taft, 1). In that case the 
Senate rejected the Governor’s appointee by a vote of no less than 20 
to T. Among those who voted on this case were five men who had 
sat in the Federal Convention which framed the Constitution. Ells¬ 
worth, King, Langdon and Martin voted against the right of the 


20 


claimant; Gouverneur Morris was the only one of the five who voted 
in his favor. In so voting he was true to the principles for which he 
had contended in debate—that the Senate should be an aristocratic 
body selected by appointment and not by election and to be removed 
as far as possible from the people of the several States. 

It, therefore, appears that if Mr. Quay is seated, the Senate in 
seating him will be departing from its own construction of the 
Constitution of a century’s standing and from a precedent established 
by a decisive vote cast by men who had abundant opportunity to 
familiarize themselves with the views of those whose language we 
are construing. The eighteenth century closed with a senatorial 
decision which vindicated the right of the State Legislature and 
put a wholesome restraint upon the action of the State Executive. 
It is to be hoped that the end of the nineteenth century will not 
witness a reversal of this wise decision. 

• 

4. Cases in which the question relates to the limitation of 
the term of the Governor 1 s appointee. 

The Governor may appoint for a term which lasts until a date 
certain falling within the recess; or he may appoint until the next 
meeting of the Legislature. In the case of Archibald Dixon, 1852, 
supra, it was held that the Governor might limit his appointment to 
a date within the recess, if that date happened to be the beginning 
of a term of a Senator previously elected by the Legislature. If the 
Governor appoints for a term to last until the next meeting of the 
Legislature, it may happen that the next Legislature will elect a 
successor to the Governor’s appointee, or that it will sit, fail to elect 
and adjourn. In the former event, it has been held in two cases 
(Samuel Smith and Robert C. Winthrop, supra,) that the appointee 
is entitled to sit during the session of the Legislature until the 
election of his successor and until the acceptance of the successor 
has been notified to the Senate. In the latter event it has been held 
in two cases (Samuel S. Phelps and Jared W. Williams, supra,) 
that immediately upon the adjournment of the Legislature without 


21 


electing a successor, the term of the Governor’s appointee is at an 
end. In other words, the Senate, after solemn and mature delibera¬ 
tion in these two cases, emphasized the principle that the Governor’s 
right is subsidiary and substitutional merely; and that when the 
Legislature has once had an opportunity to elect and has, by 
adjourning without election, made it certain that the election can¬ 
not take place, the right of an appointee is at an end. 

Attention is invited to the significance of these precedents in 
connection with the case of Mr. Quay. If, during the recess of the 
Legislature of Pennsylvania, occurring in 1898, Mr. Quay had been 
appointed to fill a vacancy happening by the death or resignation of 
a predecessor, he might have taken his seat in the Senate of the 
United States in the fall of 1898, and he might have continued to sit 
while the Legislature of Pennsylvania was in session during the 
winter and early spring of 1899. Immediately upon the adjournment 
of the Pennsylvania Legislature the term of Mr. Quay as the Gov¬ 
ernor’s appointee would have come to an end, in obedience to 
the precedent in the Phelps case and the Williams case. Those 
who now advocate the seating of Mr. Quay would be compelled 
to contend that the Governor, by a new appointment, might 
nullify the decision in the Phelps and Williams cases and con¬ 
tinue his appointee in office from year to year as long as the Legisla¬ 
ture failed to elect. Surely, no result could be more inconsistent 
with the deliberate decision of the Senate in the Phelps case and the 
Williams case. It is earnestly submitted that this simple statement 
of the effect of the contention made on behalf of Mr. Quay is one of 
the strongest arguments that can be made against his claim of right 
to a seat in the Senate. 


The precedents which have been examined make it clear that the 
seating of Mr. Quay would involve the recognition of the right of a 
Governor to fill a vacancy caused by the expiration of a term when the 
vacancy can be foreseen—a return to the position abandoned seventy- 



22 


five years ago ; that it would involve a recognition for the first time in 
the history of the Senate of the right of a Governor to appoint when 
an opportunity for legislative action has intervened ; and that it would 
involve the abandonment of the wholesome principle that a Governor 
has no rights whatever after the adjournment of a Legislature in 
respect of a vacancy which the Legislature has had an opportunity 
to fill and especially one that did not begin during a recess of the 
Legislature. 

It is true that in the discussion of these Senate election 
cases many distinguished Senators have contended for results 
which the Senate finally refused to reach. This was notably the 
fact in the Mantle case already referred to. In that case the Senate 
rejected the report of the majority of the committee, and refused to 
seat the Governor’s appointee, although it should seem that the re¬ 
port of the majority made the strongest possible presentation of 
what we firmly believe to be the wrong side of the question under 
discussion. 

We beg respectfully to refer to some of the considerations 
advanced in the report of the majority of the committee in the Mantle 
case, and to submit that they are not well founded. 

We submit First, that while it is true that the purpose of the 
Constitution is that all of its parts should be in active and effective 
operation at all times, it is also true that the Constitution itself most 
carefully provides for the occasions and the methods by which this 
should be accomplished. We think it clear that the framers of the 
Constitution especially designed, in respect of representatives of the 
people and of the States, that the choice of such representatives should 
always be in the hands of the people and of the Legislatures of the 
States, which Legislatures immediately represent the people in their 
primary capacity, and that it was not designed to leave it in the 
power of the Executive of a State to make selections, except in the 
precise and occasional instances in which, when a vacancy should 
come into existence, he is given the right to make a 11 temporary 
appointment’’ until the next meeting of the representatives of the 


23 


people. The Governor of the State was not given power to fill the 
vacancy at all. The language of the clause repels the idea. The 
Legislature when it next meets after the vacancies have come into 
existence shall fill the vacancies. The vacancy spoken of must of 
necessity always be for a definite period of time, namely, from its 
beginning to the end of the term to which it belongs or to the time 
when the Legislature fills it. We believe this proposition has never 
been questioned. The clause of the Constitution above referred to 
in respect of Senators stands in marked contrast with the clause 
respecting the power of the President, which in express terms gives 
him the power to “fill up all vacancies ,” etc. 

Second .—The clause in the Constitution respecting members of 
the House of Representatives is entirely different from that in respect 
of Senators. It is not limited to any parricular period of time as in 
the case of Senators—" during a recess of the House ”—but it is so 
framed that whenever vacancies happen the executive of the State is 
commanded to issue writs of election to fill such vacancies ; while in 
the case of Senators, the State Executive is given authority to make 
temporary appointments. Whether he should do so or not was left 
to his discretion in the state of circumstances that might exist in each 
particular case. It will be perceived, therefore, that it was industri¬ 
ously provided in the ease of Senators that the Executive authority 
should be kept within the narrowest possible limits. Had the idea of 
keeping the offices full been either the fundamental or even the 
influential one, the clause would have been framed to read that " all 
vacancies in the office of Senator which may exist at any time shall 
be filled by the Executive of the State by granting commissions to 
expire at the end of the next session of the Legislature.” Is it not a 
just conclusion, then, that the intention was to keep out of the hands of 
anyone man holding the office of Governor, the power to send mem¬ 
bers to the Senate, to the last practicable degree ? A vacancy in 
an office is a unit. The same vacancy, therefore, can never " happen,” 
‘'take place,” "occur,” or "come to pass ” but once. When it has 


24 


begun it has happened, it has taken place, it has occurred, it has come 
to pass, and it cannot possibly, in the nature of things, do any one 
of them again. 

Third .—The use in the Constitution of the plural word “ vacan¬ 
cies ” is, it is submitted, merely the distributive equivalent of the 
words “ if a vacancy shall happen.” It was a mere matter of con¬ 
venience of style. In the sentences immediately preceding the plural 
form is invariably used—“ Two Senators,” “ Three classes,” “ Seats 
of the Senators.” It wasthought convenient that ‘‘vacancies” should be 
used instead of “ vacancy,” and “ appointments ” instead of “ appoint¬ 
ment. ” To assign any other significance to the plural form would 
imply, as indeed the language of the report in the Mantle case 
appears to state, that the Executive of the State should have the 
perpetual power of appointment, in which case it would only be 
necessary for him to have a small number of the members of the 
Legislature adhering to his interests, who, by voting for a third 
candidate, could prevent a majority from being obtained for any 
other. Such a government would not be a “government of the peo¬ 
ple, for the people and by the people,” but would, so far, be a gov¬ 
ernment by the Executive, who, in States where a plurality elects, 
might continue to be the choice of only a minority of the citizens. 

These considerations, doubtless, were among those that influ¬ 
enced the Senate in rejecting the report of the majority of the com¬ 
mittee in the Mantle case in spite of the ability and ingenuity with 
which the views of the majority were presented. As it is, the decis¬ 
ion of the Senate in that case takes its place in the unbroken line of 
precedents which set well-defined limits to the power of the State 
Executive. 


Upon the authority, then, of the Senatorial precedents, as well 
as upon just principles of constitutional interpretation, it is con¬ 
fidently submitted that Mr. Quay has not a vestige of right to the 
seat which he claims. 



25 



The Provisions of the Constitution of Pennsylvania 
Requiring the Governor to Convene the Legislature to Fill 
a Senatorial Vacancy. 

The Constitution of the State of Pennsylvania which came into 
operation in 1874 contains the following* provision in Section 4 of 
Article II. 

“ The General Assembly shall meet at twelve oclock noon on the 
first Tuesday of January every second year, and at other times when 
convened by the Governor, but shall hold no adjourned annual session 
after the year 1878. In case of a vacancy in the office of United 
States Senator from this Commonwealth in a recess between sessions, 
the Governor shall convene the two houses by proclamation on notice 
not exceeding- sixty days to fill the same.” 

It will be seen that this section provides for every vacancy, no 
matter when it happened or how it happened. It may be affirmed 
we think, without danger of contradiction, that it was within the 
absolute competence of the people of Pennsylvania to require the 
Governor to convene the Legislature on any occasion whatever which 
they might chose to provide for. The Constitution of the United 
States expressly authorizes each State to regulate the time of electing 
Senators and Representatives, subject to the power of Congress to 
alter such regulations ; and it especially recognizes that the next 
meeting of a Legislature, after a vacancy comes into existence, is to 
fill it. 

The above quoted Section of the State Constitution is therefore 
in entire harmony with the Constitution of the United States and in 
no manner interferes with the authority given by it to the Governor. 
The Constitution of the State, then, has required the Governor in all 
such cases as this to convene the Legislature for the purpose of filling 
the vacancy. He has for three-quarters of a year disobeyed this 


26 


requirement and insists that his commission shall give authority to 
his appointee to represent the State in the Senate, in defiance of the 
positive provisions of its constitution. It is believed that no case can 
be suggested which illustrates more strongly than this the danger of 
the latitudinary construction of the Constitution of the United States 
claimed on behalf of the Governor. 

If it is urged that the duty of the Governor to convene the 
Legislature is limited to the case of vacancies happening in recess 
where the Legislature has had no opportunity to act, a sufficient 
answer to the suggestion is found in the explicit language of the 
Constitution and in the circumstances which led to the adoption 
of the provision in question. 

In the first place it will be noticed that the significant word 
“happened ’’ does not appear in the provision. The words are, “ in 
case of a vacancy in a recess between sessions,’’ the language is 
broad enough to include all vacancies irrespective of their cause or 
the time of their occurrence. Turning to the debates in the Consti¬ 
tutional Convention, we find that the insertion of the provision in 
question was moved by Mr. Buckalew, at one time a Senator of the 
United States, who has taken pains to make a clear exposition of the 
provision in his authoritative work upon the Constitution' of 
Pennsylvania, at page 33, he uses the following language: 

“ The clause relating to senatorial vacancies was proposed and 
agreed to on second reading. (5 Conv. Deb. 350.) The word 
‘ casual ’ before the word ‘vacancy,’ in the amendment as adopted, 
was afterwards struck out, so that the provision should apply to 
vacancies occasioned by regular expiration of senatorial terms, as 
well as to others. 

“ The vacancies provided for in this clause, are evidently those 
which may exist in a recess between sessions, whether they shall 
happen to occur during a recess or not. It follows that if a vacancy 
sh-jll exist during a legislative session and shall not be filled before 
the adjournment, it will be the duty of the Governor, in recess, to 
convene the Legislature to fill it. 


27 


4< The power of the Governor under the Constitution of the 
United States to fill a senatorial vacancy, is not at all interfered with 
by this section, which only provides for bringing the Legislature 
into session at fit times. It would, however, be an abuse of power, 
or rather a violation of the whole spirit and purpose of this section, 
for the Governor to delay calling a special session, in order to 
continue the senatorial service of a person appointed by him to fill a 
vacancy.’’ 

Senator Buckalew’s reference to the omission of the word 
“casual” makes it abundantly clear that the framers of the Penn- 
svlvania Constitution desired to insure the election of a United 
States Senator by the Legislature in every contingency that could 
possibly happen. A reference to the report of the debates in the 
Constitutional Convention reveals the fact that the provision in 
question was inserted to limit the duration of the term of a Gov¬ 
ernor’s appointee, which otherwise would have been unduly extended 
by the adoption of the system of biennial legislative sessions. The 
remarks of Senator Buckalew in support of the resolution embody¬ 
ing the provision in question are here printed in full. At a subse¬ 
quent period of the debate the word “ casual ” was stricken out as 
already explained. “ The Constitution of the United States provides 
for the election of United States Senators by the Legislature. Under 
the provision of biennial sessions it may happen that a Governor may 
have to appoint a United States Senator for nearly two years. It 
was never the intention of the provision in the Constitution of the 
United States that he should have the appointment of a Senator for a 
long period of time, but that simply in the case of an emergency he 
might fill a vacancy in the United States Senate by appointment 
until the Legislature should meet. It has been the usual habit in 
the Legislatures of the different States to meet every year ; but as we 
have ordered biennial sessions, I think it would be proper to provide 
an amendment by which, incase of a vacancy in the United States 
Senate the Governor should convene in session the Legislature for 
the purpose of electing a Senator to fill that vacancy. Meanw r hile, 


28 


he would fill it by appointment under the Constitution. I think, 
sir, that this amendment will relieve one of the principal objections 
to biennial sessions of the Legislature, as we have now voted that 
our Legislature shall meet only biennially. There is another objec¬ 
tion which my amendment will correct besides the question of filling 
seats in the Senate, which is this: The election bv the Legislature 
itself may be held one whole year before the seat is to be filled, on 
the expiration of a regular term. It is a great inconvenience that 
the Legislature shall be called a whole year beforehand to fill a seat 
in the Senate. This is one of the difficulties which we have in es¬ 
tablishing constitutional provisions providing for sessions of the 
Legislature. I know that in many of the States of this Union 
this has constituted a serious objection in practice to bien¬ 
nial sessions, and, of course we shall be obliged to incur that incon¬ 
venience. A seat in the United States Senate ought to be filled by 
the Legislature near the time when the vacancy occurs. I beg leave 
to say that I understand we have another provision in the Constitu¬ 
tion that the Legislature, when convened by the Governor in special 
session, shall be confined to the subject upon which he calls them 
together, so that when the two Houses are called together to elect a 
United States Senator, under the provisions of this amendment, it 
will be a short session, and held at very inconsiderable expense.’’ 

If, then, we sum up the effect of the provisions of the Constitu¬ 
tion of Pennsylvania, a summary statement may be made somewhat 
as follows : 

The United States Constitution says that the Governor may 
—not shall—appoint until the next meeting of the Legislature. 

The Constitution of Pennsylvania says that he shall convene 
the Legislature on not more than sixty days’ notice whenever a 
vacancy exists. The duty of the Governor was made imperative by 
the Constitution as soon as the vacancy described in the Constitution 
came to be one existing in the recess of the Legislature. 

The time when that meeting should have been held has long since 
passed. The issuing of the commission to Mr. Quay was, therefore, 


29 


a flagrant violation of the Constitution of Pennsylvania. It was 
an act which the Constitution of the United States did not require 
him to do. Is the Senate of the United States, under any con¬ 
struction of the word u happen,” bound to recognize such an usurpa¬ 
tion as lawful and approve it by affirming the validity of such an 
appointment? Had the Governor done his duty, his appointment 
and his right to appoint would have long since lapsed. Applying the 
principles upon which Courts have always acted in analogous cases, 
it is insisted that the present commission is absolutely void. 


In conclusion, we respectfully submit that this honorable com¬ 
mittee should report that Mr. Quay is not entitled to the seat which 
he claims, because in appointing him the Governor of Pennsylvania 
exceeded the power conferred upon him by the Constitution of the 
United States, disregarded the precedents established by the Senate, 
and, by failing to convene the Legislature of the State, committed a 
flagrant violation of the Constitution of Pennsylvania. 

GEORGE WHARTON PEPPER, 
HAMPTON L. CARSON, 

GEORGE F. EDMUNDS, 

Of Counsel. 



APPENDIX 


MEMORIAL 

of 

Republican Members of the Pennsylvania Legis¬ 
lature to the United States Senate 

Against the Recognition of the Unconstitutional 
Appointment of M. S. Quay 


To the Honorable the Members of the United States Senate: 

Gentlemen: We, the undersigned members of the Senate and 
House of Representatives of the Commonwealth of Pennsylvania, 
protesting that no man should be allowed to take a seat in the United 
States Senate from this Commonwealth unless he has a clear and 
unclouded title, do 

Respectfully represent: 

The Legislature of Pennsylvania met on the first Tuesday of 
January, 1899, and, in accordance with the Act of Congress approved 
July 28, 1866, began balloting on Tuesday January 17, 1899, for the 
purpose of electing a United States Senator to fill the vacancy caused 
by the expiration of the term of M. S. Quay, which subsequently 
occurred March 3, 1899. 

The Legislature remained in session, balloting each day in joint 
convention, until April 20, 1899, without effecting an election, and 
on that day adjourned sine die. The total membership of the Leg¬ 
islature was 253. The last vote preceding the adjournment was, for 
M. S. Quay, 93; for his opponents, 154, as follows: B. F. Jones, 
69 ; George A. Jenks, 85. 




31 


No person having a majority of the votes of those present, the 
joint convention failed to elect. Immediately thereafter, on April 
21, 1899, Governor Stone wrote a letter in which he purported to 
make a temporary appointment, and named M. S. Quay. 

If considerations of party affiliation and sympathy could be 
supposed to have any weight (as they ought not to have), it would 
be pertinent to call attention to the fact that upon the question of 
M. S. Quay’s election as Senator, there was opposed to him a major¬ 
ity of the Republican Senators last elected by the people in the sev¬ 
eral Senatorial districts of the Commonwealth. 

Of the 199 votes cast by members of the House (of both parties) 
on the last ballot preceding adjournment, 128 voted against M. S. 
Quay and 11 for him. 

This vacancy in the representation from Pennsylvania did not 
happen during the recess of the Legislature, but while the Legisla¬ 
ture was in session, and at a time when the Governor had no possi¬ 
ble authority to make a temporary appointment, the session of the 
Legislature having continued for forty-seven days after the expira¬ 
tion of M. S. Quay’s term. Article 1, Section 3, of the Constitution 
of the United States, upon which Governor Stone is presumed to 
have based his appointment of M. S. Quay, provides: “ And if vacan¬ 
cies happen, hy resignation or otherwise, during the recess of the 
“ Legislature of any State, the Executive thereof may make tempo- 
<• rary appointments until the next meeting of the Legislature, which 
“ shall then fill such vacancies.” 

The right of a Governor to make a temporary appointment to 
the United States Senate, when the expiration of a Senatorial term 
happens while the Legislature is in session, in such cases as now exist 
in Pennsylvania, Delaware, Utah and California, has again and again 
been denied by your honorable body. 

If this were not the rule, a power usurped by a Governor would 
enable him to force into the Senate some man in direct violation of 
the will of a majority of the people of a State ; a proceeding 
which would be utterly subversive of the principles upon which our 
Government is founded. 


32 


If a Governor of a State is to be invested with the right to make 
a Senatorial appointment after the Legislature has had an opportun¬ 
ity to elect and has failed to act, it will inevitably result that efforts 
will be made by the Executives of the States to gather round them¬ 
selves a small band of adherents who, holding the balance of power 
and preventing an election by the Legislature, will deliberately throw 
into the hands of a Governor the prerogative with which the Consti¬ 
tution of the United States has invested the several Legislatures. 

The language of the Constitution of the United States is per¬ 
fectly clear in letter and spirit in providing that the power of the 
Executive to appoint can be exercised only when the Legislature has 
had no opportunity to make the election. At the basis of the consti¬ 
tutional provisions relating to the composition of the Senate lies the 
conception that it is the Legislatures, representing the people of the 
States in their separate and free municipal capacities, which shall 
make the election of the United States Senators, and that the power 
of the Governors shall be brought into exercise only when the Legis¬ 
latures have not had an opportunity to act. 

This your memorialists confidently assert has been the absolutely 
uniform rule of the Senate of the United States from the first case to 
the last that has been brought to its consideration. 

In this instance, your memorialists call your attention to an 
additional reason why the certificate given by Governor Stone should 
not be recognized. 

The Constitution of Pennsylvania (Article II, Section 4) pro¬ 
vides : “ In case of a vacancy in the office of United States Senator 
“ of this Commonwealth, in a recess between sessions, the Governor 
“ shall convene the two houses, by proclamation, on notice not 
“exceeding sixty days to fill the same.” 

The omission to convene such special session of the Legisla¬ 
ture in order to fill the vacancy now existing in the United States 
Senate from this Commonwealth, without regard to when it hap¬ 
pened, is a grots violation of the Constitution of Pennsylvania, and 
a temporary appointment made under such circumstances is entitled 
to no consideration whatever. 


33 


To overthrow the long line of decisions firmly established in the 
Senate since the foundation of our Government, and sanction the 
flagrant disregard of the Constitution of a Commonwealth by its 
Chief Executive, would be to establish precedents which cannot fail 
to produce corruption and abuses in National and State politics. 

In view of these considerations, we feel confident you will realize 
the importance of adhering to the provisions of the Constitution of 
the United States, and of giving no recognition to a temporary 
appointment made contrary to precedent and in contravention of the 
Constitution of the United States and of the Commonwealth of 
Pennsylvania. 


William Flinn, 
David Martin, 

John S. Weller, 

C. R. Woodruff, 

W. H. Koontz, 
Frank G. Edwards, 
John F. Keator, 
Mahlon L. Savage, 
John B. Rendall, 
Palmer Laubach, 

L. H. R. Nyce 
James Clarency, 
Harrv Wilkinson, 
Wm. F. Stewart, 
Thos. J. Ford, 

W. W. McElhany, 
Guy P. McCandless, 
James McB. Robb, 
Walter Stradling, 

H. Clay Chisolm, 


J. Bayard Henry, 
Hampton W. Rice, 
John Dindinger, 
James N. Moore, 

F. B. Hargrave, 

W. D. Wilson, 

John M. Martin, 
Geo. H. Caldwell, 

R. S. Edminston, 
Edw. D. Wadsworth, 
Plummer E. Jeflferis, 
Jason Sexton, 

W. C. Norton, 

James Foster, 

Wm. P. Winner, 

A. L. Allen, 

Samuel Weiss, 
Charles Shane, 

Elias Abrams, 

Robt. A. Linton, 


C. L. Magee, 

John W. Crawford, 
Samuel A. Losch, 
Robt. McWhinney, 
J. Lewis Srodes, 
Geo. M. Hosack, 
Frank J. Klumpp, 
Wm. W. Nisbet, 
Geo. L. McFarlane, 
F. L. Snyder, 

Henry H. Fetterolf, 
J. H. McLain, 
Samuel A. Kendall, 
J. V. Clark, 

S. D. Robison, 

E. A. Coray, Jr. 

J. Alexander, 

R. Kennedy Young, 
L. T. Manley, 
Nathan C. Mackey. 


fti 

1794 

1801 

1809 

1825 

1836 

1851 

1852 

1853 

1853 

1879 

1885 

1891 

1893 

1893 

1893 

1898 

indman 

r. Cutts 

and (3) 

ess and 


al Stateme 


at of the Senate Election Cases—Comprising Cases reported in Taft's Compilation and those decided since 1891 


Cause of Vacancy 


B 

Occurrence of Vacancy 


Time of Appointment 


D 

Limitation of Appointment 


Resignation 
Taking Effect 


At Once 


At a Future Dr y 


Death 


Pending 

Resignation 


Otherwise 



Expiration of 
Prior Term 


Vacancy Not 
Foreseen 


Vacancy Foreseen 


Susceptible of Being Not Susceptible of 
Provided for in Being Provided for 

Advance by the in Advance 

Legislature 


2 

3 

4 


5 


7 7 


8 

9 


10 

11 


12 . 

. 13 

. 14 * 

. 15* 

. 16 


Since 1817 no Governor's appointee has been seated by the Senate where the vacancy, which was the occasion of his appointment, 
was caused by the expiration of a prior term, which expiration was foreseen and was susceptible of being provided for in advance by 
the Legislature. On the contrary, in the cases of James Lanman (1825), of Lee Mantle, and Henry VY. Corbett, the Senate declined 
to seat p rsons appointed under these circumstances, notwithstanding that in each case the vacancy had occurred during the recess of 
the Legislature, and there had been no opportunity for legislative action in the interval between the occurrence of the vacancy and the 
making of the appointment. 

In Mr. Quay’s case the vacancy which Governor Stone undertook to fill was a vacancy which could be foreseen and might 
have be6n provided for in advance by the Legislature. If, therefore, Mr. Quay is seated by the Senate, the decision will involve a 
return to a position abandoned seventy-five years ago, and will involve a reversal of three carefully considered precedents established 
within that period. 


* Not pressed to a vote. 


During the 
Recess of the 
Legislature 


1 . 

2 . 

3 . 

4 . 

5 . 

6 . 

7 . 

8 . 

9 . 

10 . 

11 . 

12 . 

13 . 

. 14* 


16 


In no case has the Senate ever seated 
a Governor’s appointee where the vacancy 
which was the occassion of the Governor’s 
temporary appointment occurred while the 
Legislature of the State was in session. In 
every one of the cases, from that ot Kensey 
Johns in 1794 to that of Henry \\ r . Corbett, 
in 1898, it appears that the vacancy occurred 
during the recess of the Legislature. In the 
case of John B. Allen and in the case of 
Ashahel C. Beckwith it appears that the 
vacancy occurred during the session of the 
Legislature ; but neither of these cases was 
pressed to a vote, but the claim was aban¬ 
doned after the Senate decided that Mr. 
Mantle was not entitled to his seat. 

In Mr. Quay’s case the vacancy 
occurred during the session of the Legisla¬ 
ture. If he is seated, the Senate will depart 
from a line of action which has been 
unbroken since the foundation of the gov¬ 
ernment. 


During the 
Session of the 
Legislature 


Before the 
Occurrence of the 
Vacancy 


After the 
Occurrence of the 
Vacancy 



No Opportunity for Opportunity No Opportunity to Opportunity to 

Legislative Action in Interval for Elect Between Elect Between 

in the Interval Legislative Action Occurrence of Vacancy and 

Vacancy and Appointment 

Appointment 


2 


4 

5 


12 


1 


3 


6 

7 

8 

9 

10 
11 


13 . 

. 14* 


16 


Of all the cases cited above, there is only one (that of Kensey 
Johns, arising in 1794) in which the Senate was called upon to vote upon 
the right of a Governor’s appointee where a legislative opportunity to 
elect intervened between the happening of the vacancy in recess and the 
time of appointment. In that case the question was decided against the 
claim of the appointee by a decisive vote. In every other case it is a fact 
that no legislative opportunity had occurred in the interval. 

In Mr. Quay’s case the Legislature had ample opportunity to elect 
both before the occurrence of the vacancy and after it; and, therefore, 
before the date of the Governor’s appointment. If Mr. Quay is seated 
the Senate will necessarily overrule the decision in the Johns case and will 
recognize the right of a Governor’s appointee upon a state of facts which 
no one has thought worth while to bring to a vote during the hundred 
years which have elapsed since the Johns case was decided. 


Until a Date Until Next 

Certain Meeting of the 

During Recess Legislature 



The Legislature The Legislature 

Meets and Elects Adjourns Without 

Electing 


3 


. 6 . 

7 . 

. 8 

. 9 


In the Phelps case and in the YY'illiams case 
(cited above) it was decided, after mature considera¬ 
tion, that the person temporarily appointed by the 
governor on the occasion of a vacancy occurring in 
recess was not entitled to retain his seat in the Senate 
after the adjournment of the next session of the 
State Legislature which had an opportunity to select 
his successor. 

In Mr. Quay’s case the Legislature had an 
opportunity to elect his successor, and adjourned 
without effecting an election. If the Senate recog¬ 
nizes Mr. Quay’s claim, the conclusion will be estab¬ 
lished that the decision in the Phelps and Williams 
cases may be nullified by the act of a Governor in 
re-commissioning his appointee immediately after the 
Legislature has risen. If he may do this once, he 
may do it indefinitely ; and the State may continue 
to be represented in the Senate by one who is the 
mere personal favorite of the Governor, not in politi¬ 
cal sympathy w'ith either of the great parties or with 
the views of a majority of the people of his State. 


The Decision 


Not entitled to the seat, the Legislature having had an 
opportunity to elect. 

2. Entitled to the seat, although the occurrence of the 

vacancy was foreseen. 

3. Entitled to the seat till the election of a successor. 

4. Not entitled : either because the vacancy could have been 

provided for in advance; or because the appointment 
was made before the occurrence of the vacancy. 

5. Entitled, the vacancy not having been foreseen. 

0. Entitled to sit until the acceptance of his successor should 
be notified to the Senate. 

7. Entitled to sit only to date named in appointment, at which 

date an election previously held took effect. 

8. Not entitled after the adjournment of the Legislature. 

Q. Not entitled after the adjournment of the Legislature. 

10. Entitled, as the vacancy (though foreseen) could not be 
provided for in advance. 

1 1. Entitled, on the principle applied in (10). 

12. Entitled (though the appointment was made in advance 

of the vacancy) as the Legislature had no opportunity 
to act. 

13. Not entitled, the vacancy being foreseen and being sus¬ 

ceptible of being provided for in advance. 

14. Claim not pressed in view of decision of (13). 

15. Claim not pressed in view of provision of (13). 

16. Not entitled, the vacancy being foreseen and being sus¬ 

ceptible of being provided for in advance. 











































































































































































































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